BVA9500437 DOCKET NO. 91-35 616 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Associate Counsel INTRODUCTION The veteran had active service from August 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of August 1990. After the case was received at the Board, it was referred to the Department of Veterans Affairs (VA) Director of Medical Services, who forwarded the claims folder to a VA staff psychiatrist for review. Following the receipt of the opinion in October 1994, and the representative's comments received in December 1994, the case was referred for appellate consideration. In written arguments dated in January 1993, the veteran's representative raised the issue of entitlement to service connection for residuals of a head injury. Service connection for a head injury was denied by the RO in July 1972, and this matter is referred to the RO for appropriate disposition, based on the representative's informal hearing presentation of January 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative essentially contend that the veteran initially manifested a psychiatric disorder in service. The veteran maintains that proof of his claim, including his inservice profiles indicating treatment for nerves and discharge documents, which he obtained from his ex-wife in 1989, were lost by his then-representative. He states he should have had a medical discharge, because he began hearing voices in service, which continued after service and became so bad that he had a "nervous breakdown," requiring hospitalization. He also asserts that the general discharge that he was granted proves that he had either physical or mental problems. He also maintains that the military taught him to react violently in threatening situations, which led to his incarceration subsequent to service. In addition, he claimed, in a statement received in August 1992, that he had post-traumatic stress disorder resulting from service in Vietnam. Finally, the veteran's representative argues that the medical opinion dated in October 1994 does not state whether the "primordial" symptoms of an acquired psychiatric disorder were present in service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the originating agency. 2. Schizophrenia was first manifested more than one year after the veteran's separation in service. 3. Schizophrenia was unrelated to any inservice events. CONCLUSION OF LAW Schizophrenia was not incurred in or aggravated by active service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claim is well-grounded; that is, it is plausible. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1991). The relevant facts have been properly developed, and, accordingly, the statutory obligation of the Department of Veterans Affairs (VA) to assist in the development of the appellant's claim has been satisfied. Id. Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). If the disability is a psychosis, service connection may be established if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). The veteran's examination for entrance onto active duty in August 1970 did not reveal any psychiatric complaints or abnormalities. In November 1970, he was seen following a fall from a ladder; he had acute lumbosacral pain. No mention was made of any head injury. However, in January 1971, he began claiming that he had lost consciousness in the fall a month and a half earlier, and had suffered periodic blackouts since then. He also complained of dizziness and headaches. On one occasion in January 1971, he was also noted to be upset about a recent dream, and resistant to help of any sort. On the separation examination of August 1971, the veteran checked the "yes" box to the question of whether he had ever had depression or excessive worry. The veteran also noted that he had tried to enter the military in 1968 or 1969, but had been refused because of his blackouts. No pertinent abnormalities were noted on examination. In September 1971, he was referred for a work-up for post-traumatic syndrome with headaches, syncope, aggressive symptoms and some confusion. An electroencephalogram (EEG) was normal. He was discharged under honorable conditions, due to unsuitability, character and behavior disorders. Subsequent to service, the veteran was hospitalized in a VA facility in May 1972 for evaluation of a probable convulsive disorder. Initially, work-up was negative; however, a Brevital EEG elicited an abnormal response, and based on this finding as well as the veteran's history, a convulsive disorder of unknown etiology was diagnosed. In November 1976, the veteran was admitted to St. Elizabeth's Hospital in what was noted to be his first hospitalization, after bizarre behavior had been observed. He had reportedly completed two years of college and had been unemployed several weeks prior to admission. He had a two to three year history of drug use, including marijuana, cocaine, "tabs," and "angel dust." He stated he had taken drugs in Vietnam. He was noted to vacillate between being hostile and agitated, to being cooperative, and at times was suicidal. It was felt that he was suffering from schizophrenia, paranoid type. He was discharged in January 1977, at his request, after some improvement with psychotropic medication. The veteran was again hospitalized in St. Elizabeth's in June 1977, after having been adjudicated mentally incompetent to stand trial for breaking and entering. He was noted to be an unreliable historian on admission. He was very unkempt and untidy, and appeared tense and suspicious. No hallucinosis was noted on admission, although his responses were so unreliable that a mental status examination could not be conducted. On the ward, he initially appeared as withdrawn and somewhat confused. He had to be placed in seclusion following periods of verbal threats, and was placed on a course of Thorazine. The general impression on initial interviews was of an extremely guarded and evasive individual. Although the veteran did not respond to questions regarding hallucinations, the staff felt that he was experiencing auditory hallucinations. With a medication regimen which also included Tofranil and Stelazine, he experienced a gradual improvement in behavior. Psychological testing to determine whether there was a drug-related psychotic episode was attempted; despite the veteran's lack of cooperation, results were felt to be consistent with the presence of an underlying thought disorder, handled primarily by repression and denial. The diagnosis was schizophrenia, paranoid type, in partial remission, potentially exacerbated by drug usage. At the time of his discharge, he was felt to be competent to stand trial, contingent upon usage of his prescribed medication. From December 1977 to January 1978, the veteran was hospitalized in a VA facility. At that time, he reported hearing voices telling him to commit suicide; he stated he had heard voices for three years. He would not elaborate. He was uncooperative and suspicious during the hospitalization, and eventually was granted an irregular discharge following his selling and smoking marijuana on the ward. Discharge diagnoses were chronic schizophrenia, undifferentiated type, and multiple drug abuse. The veteran was again hospitalized in St. Elizabeth's in April 1978, after having been found mentally incompetent to stand trial for assault with intent to kill while armed. He presented with social withdrawal and isolation, verbal muteness, great suspiciousness, preoccupation and guardedness, as well as some suggestion of auditory hallucinosis, although he refused to describe the content. He experienced gradual improvement, and in July 1979, was felt to be ready for minimum security the following month, provided that his adjustment remained the same. The diagnosis was schizophrenia, paranoid type. A psychiatric assessment from St. Elizabeth's dated in September 1983 disclosed a somewhat erratic course of the veteran's symptomatology during the preceding years. It was noted that he had spent time on both maximum and minimum security wards, but due to difficulty in controlling his aggressive behavior and his poor impulse control, he had been transferred from minimum back to maximum security where he was then residing. It was noted that he was always involved when contraband drugs were present on the ward. His most recent transfer to maximum security had been precipitated by an attack upon staff members; however, immediately prior to that, he had been recommended for conditional release. Mental status examination, conducted over time, revealed fluctuating behavior patterns and thought content which occasionally became circumstantial and tangential. He had no insight and poor judgment. Diagnoses were schizophrenia, paranoid type, and mixed substance abuse, continuous. In October 1994, an opinion was received from the Associate Chief of Staff of the West Los Angeles VA ambulatory care/mental health center. The physician wrote that he had reviewed the appellant's file, and concluded that there was insufficient evidence that the veteran's schizophrenia was associated with his military service. There was no contemporaneous indication that the veteran was suffering from psychotic symptoms during service; in fact his first psychiatric hospitalization and diagnosis of schizophrenia did not occur until five years after service. In deciding the veteran's claim, VA must weigh the evidence, and determine whether the assembled evidence supports the claim or is in relative equipoise, with the veteran prevailing in either instance, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). In this case, the evidence in the veteran's favor consists of service medical records which show the veteran had symptoms on one occasion shortly before his discharge which included confusion and aggressive behavior, in connection with his complaints of blackouts, dizziness and headaches. Aggressive behavior has been noted during his post-service hospitalizations, and confusion has also been reported on occasion. He also reported "depression or excessive worry" on his medical history at separation. The evidence against the veteran consists of the absence of any clinical indication in service that the veteran was experiencing psychotic manifestations; i.e., there is no suggestion that the aggressive behavior and confusion noted on one occasion were thought, by the contemporaneous medical examiner, to be evidence of psychosis. The veteran's reports of "depression or excessive worry" did not lead to a finding of psychiatric abnormality. The VA physician who examined the file in 1994 did not believe that there was evidence of a psychosis in service, and there is no competent medical evidence controverting this conclusion. Moreover, the hospitalization after service in 1972 did not contain any indication of psychiatric abnormality. As noted by the VA physician in 1994, a psychosis was first diagnosed in 1976, five years after the veteran was separated from service. Since his initial diagnosis, his disability was refractory to treatment throughout the following seven years for which we have records, with no significant period of time during which he remained in remission. Recent evidence indicating he was hospitalized in St. Elizabeth's suggests he has remained symptomatic. Consequently, on balance, the absence of any connection of any of the veteran's inservice symptomatology to a psychosis diagnosed five years later by qualified medical personnel outweighs the positive evidence, and the preponderance of the evidence is against the veteran's claim. In this regard, we note that the contemporaneous record contains no support for the veteran's current contention that he began hearing voices in service. Further, we note that the medical records are replete with evidence of the veteran's unreliability as a historian. Additionally, the problems that occasioned the veteran's discharge from service were felt to be character or behavior disorders, which are not disabilities for which VA benefits may be granted. 38 C.F.R. § 3.303(d) (1994). There is no medical support for his contention that his violent behavior was due to his military training, nor does the record show that he was ever in Vietnam. Although the physician who examined the record in 1994 did not specifically state whether "primordial" symptoms of an acquired psychiatric disorder was present, he did state that there was no evidence of a psychosis in service. Consequently, in the absence of any medical evidence linking behavioral problems in service to a psychosis diagnosed five years later, the claim must be denied. See, Espiritu v. Derwinski, 2 Vet.App. 492 (1992) (lay persons are not competent to offer opinion of medical causation). Regarding the veteran's contention that proof of his claim, in the form of service records, was lost by a prior representative, we note that the record contains inservice "profiles" limiting the veteran's activities; all limitations were due to his blackouts. Also of record is his separation document, Form DD 214, indicating he was given a general discharge due to unsuitability. None of these documents suggest the presence of an acquired psychiatric disability. The organization has not verified that it received documents from the veteran, and he has submitted no other proof of his allegations. Particularly in view of his demonstrated unreliability as a historian, we do not find his assertions in this matter to be credible. (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disorder is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.